Monday, January 28, 2019
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed a summary judgment in favor of an insurer in its third-party action for a declaration that it has no duty to defend, in state-court actions, a studio that produces pornographic videos and is being sued by three actors who allegedly contracted HIV during shoots.
In a memorandum opinion, a three-judge panel affirmed the decision by District Court Judge Yvonne Gonzalez Rogers of the Northern District of California in favor of the State Insurance Compensation Fund. She found that an express exclusion in the studio’s policy bars actions for intentional torts and that “plaintiffs’ non-intentional tort claims are preempted by the exclusive remedy provision of workers’ compensation.”
The actors—males John Doe and Joshua Rodgers (who also uses the name Rod Daily) and female Cameron Adams (also known as Cameron Bay)—brought suit in San Francisco Superior Court against Cybernet Entertainment, LLC, which displays its videos via its website, Kink.com, arguing that their actions were outside the scope of workers’ compensation. The 2013 incidents leading to their infections, they maintained, were outside the “compensation bargain.”
The alleged incidents included other performers with whom they had contact having open wounds and one who was not wearing a condom.
Yesterday’s opinion sets forth:
“In the State Court Actions, the plaintiffs’ causes of action for negligence, negligence per se. breach of the implied covenant of good faith and fair dealing, negligent supervision, and negligent hiring and/or retention alleged, in essence, that Cybernet did not take adequate steps to protect its performers and prevent the spread of sexually transmitted diseases (STDs) and HIV during pornographic shoots, causing injury. The plaintiffs alleged that Cybernet did not provide adequate personal protective equipment, such as condoms, to performers: did not test certain performers; and otherwise violated California regulations meant to prevent the spread of STDs and HIV in pornographic shoots. We hold that the acts and injuries alleged in the foregoing causes of action fall within the compensation bargain because the gravamen of each is that Cybernet did not maintain a safe workplace. The remedy for such workplace-safety claims is workers’ compensation.”
The actors also contended that Cybernet intentionally misrepresented that the workplace was safe. That allegation, the opinion says, is outside the scope of workers’ compensation, but the cause of action is barred by the provision excluding coverage for intentional torts.
Other Intentional Torts
That exclusion, it declares, also precludes coverage for intentional infliction of emotional distress. Two of the plaintiffs alleged sexual battery which, the opinion says, likewise does not trigger a duty to defend in light of the exclusion.
The case is Cybernet Entertainment, LLC v. State Compensation Insurance Fund, 18-15082.
After two of the lawsuits were filed in 2015, Kink.com released a statement terming the allegations “so illegitimate as to be offensive,” insisting that neither plaintiff, Adams or Rodgers, “performed with anyone who was HIV+.”
The videos in which the three actors performed, such as “Bound in Public,” were made at San Francisco’s historic Armory, purchased by Kink.com in 2006 for $14.5 million. It was sold last year to an investment comp[any for $65 million.
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